Laws

About the Freedom of Information Act

Enacted in 1966, the federal Freedom of Information Act (FOIA) requires executive branch government agencies to make certain documents available to the public. (1) Prior to its enactment, individuals were required to prove a need for government records and pursue judicial avenues if the request was denied. (2)

The passage of FOIA gave the public:

The ability to request certain kinds of government information

A formal process for doing so

The right to learn why the request was denied

The right to appeal and, ultimately, challenge a denial in federal court (3)

FOIA outlines which records must be provided and which may be withheld. (4) Under the law, the burden is on the government agency to prove why it needs to withhold certain types of information.

FOIA was and is a groundbreaking law, but as a tool for obtaining public documents, it is often time-consuming, laborious, and sometimes expensive. The reality is that access to documents can be easily withheld or redacted as “proprietary”, requiring the individual to file repeated time-consuming requests or to receive incomplete information. (See “Uncovering the Truth” for more information.)

An overview of the process

A letter requesting records must state that the requester is seeking information under the Freedom of Information Act and include the requester’s name and address. A phone number is often helpful so that an agency representative can discuss the request in person.

FOIA requests must be as specific as possible. Agencies are required to provide only an existing record or document in response to a request. Each request must “reasonably” describe the records wanted so that a government employee familiar with the category of information can find it within a reasonable length of time. This “reasonable” standard leads to inconsistent results since one agency may consider a request detailed enough, while another may find it too vague.

The agency is allowed to charge the requester reasonable, pre-determined fees for the cost of searching and copying the documents. However, the Act stipulates that documents must be furnished without any charge or at reduced charges if: “disclosure of the information is in the public interest because it is likely to contribute significantly to the public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.” (5)

Under 1986 amendments to FOIA, agencies may charge different fees depending on the type of requestor and purpose. The requester may express a limit on fees he/she is willing to pay and/or request a waiver or reduction of fees. (6)

The agency has 20 business days (excluding weekends and federal public holidays) in which to respond to a request for documents and may request a 10-day extension. (7) However, in reality, receiving the actual document usually takes much longer and the courts have shown little support for enforcing time limits. (8)

FOIA also has nine statutory exemptions which agencies can use to deny requests or redact portions of documents, including privileged or confidential trade secrets or commercial or financial information. Whether or not information falls within these categories can be determined by the agency and appeals often prove futile. (9)

If a request is denied, the agency must give reasons for the denial. If the request is refused, the requester has the right to appeal the decision to the agency–a time-consuming and painstaking process often with limited, if any, success. (10)